Might RBG’s Trump Criticism Come Home To Roost?

07/05/2017 11:16 am ET Updated Jul 10, 2017

President Trump’s Travel Ban has now made it to the docket of the U.S. Supreme Court. And fifty-eight Members of Congress – not parties to any litigation but undoubtedly supporters of the President – have written to Justice Ruth Bader Ginsburg asking that she recuse herself. While not widely reported in the press, the letter referenced her earlier statements about then-candidate Trump.

In July 2016, Ginsburg said of Trump – “He is a faker.” “I can’t imagine what . . . the country . . . would be with Donald Trump as our president.” “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.” There was more. Trump’s tweeted response: “her mind is shot – resign!”. At the time, even The New York Times and The Washington Post – hardly bastions of conservative thought, both of which have editorially condemned Trump’s travel ban – didn’t have her back: The Times said her comments were “baffling”; The Post said she risked “undermin[ing] public faith in the impartiality of the courts.”

True, Justice Ginsburg apologized for her comments shortly after they were made, saying they were “ill advised” and that “judges should avoid commenting on a candidate for public office.” Nonetheless, surely no one believes that she didn’t feel what she said about the litigant now before her – the President. Apologies don’t wipe the slate clean.

Now, anyone supporting the President’s Travel Ban (or any other controversial executive order he issues) would surely have fair reason to believe that Justice Ginsburg won’t have an open mind when she dons her black robe the day this case is argued. I mean, can even a Ginsburg supporter – I proudly include myself as one – not feel confident counting on her vote, given her rulings, speeches and, of course, previously stated views of the President? Although Ginsburg did vote with the Court to (a) hear the case and (b) partially lift the ban, it was an easy vote given its unanimity. But Ginsburg, as with all justices, is not an automaton who can easily compartmentalize the views she so publicly expressed in such ad hominem terms. The Travel Ban, after all, is not an Act of Congress. It’s the “act” without Congress’s help of a one man band – the litigant before her.

Now, truth is, Ginsburg, clear-headed but a liberal, would likely line up against the Travel Ban irrespective of her personal opinions about the President. Just the same way that Justice Clarence Thomas can be relied upon by conservatives to support it. And it wouldn’t matter, really, if Ginsburg had never said anything negative publicly about Trump.

But “appearances” do count for a lot: the appearance of impropriety can be as important to how justice is dispensed in an unbiased manner as an impropriety itself. Still, here’s the real question: What ethical duty does Ginsburg have to disqualify herself given her stated acknowledgment that she “crossed the line” (my words) in making those public comments about the President? Technically, none. Supreme Court Justices are the only judges not formally bound by ethics rules. That’s right!

Does that make sense? Sort of. If one were sitting at the district court or a circuit court, another judge could take their place. Not so at the Supreme Court. Think about it – federal employees are subject to ethics rules, but not the President. If one were to distinguish, one could argue that the President must make the decision despite a conflict – he can’t recuse – and therefore must be ethically guided only by his conscience. But given possible split decisions, a Supreme Court justice’s recusal could actually be the deciding factor in a close vote.

In analyzing the issue of Supreme Court recusals, one must look no further than the stated thoughts of Ginsburg’s late opera buddy, Justice Antonin Scalia. Justice Scalia was asked to recuse himself in Cheney v. United States. Cheney, then Vice President, had been ordered by a lower court to disclose records which would show how an energy committee which he chaired developed its recommendations. Cheney appealed, and the Supreme Court agreed to hear the case.

Three weeks later, but before the case was heard, Justice Scalia flew with Vice President Cheney as his guest on Air Force 2 to go duck hunting in Louisiana. The Sierra Club, a party in the Cheney action, asked Justice Scalia to recuse himself because of his personal relationship with Cheney. Remember, in Cheney the Supreme Court would decide, not whether a law, as in the case of the Travel Ban, was proper, but whether Cheney, himself, would be required to produce documents. Seems to require recusal even more so than in Ginsburg’s Travel Ban issue, doesn’t it? Cheney’s own actions were in issue.

Whether recusal is required, however, is left to the justice being asked to step aside – he decides whether he can be impartial. In a 21-page opus, Justice Scalia painstakingly explained (or justified) his non-recusal. After detailing the Cheney facts, he discussed the many Justice-President relationships over the years: Chief Justice Marshall and John Quincy Adams; Justice Harlan and Rutherford Hayes; Justice Stone and the Hoover White House; Holmes and Teddy Roosevelt, with Holmes deciding a case involving an important Roosevelt initiative; Truman and much of the Court which decided Truman’s seizure of the steel mills. And the poker players – Douglas and FDR; Vinson and Truman.

So, back to Justice Ginsburg. It is highly unlikely that she will recuse herself. Also, it is highly unlikely that she will vote in favor of the ban at day’s end. And she will have unwavering authority on her side in doing so, authority in place since the dawn of the Republic.

But what does it say to a public that expects from the justices who sit atop the judiciary the punctilio of propriety? Theoretically, a justice can publicly excoriate a president – any president – in calumnious terms and then sit on a case involving the precise basis for the calumny, by simply stating on the record that he or she can nonetheless be fair to him. Similarly, a justice could hypothetically have a meretricious relationship with a president and nonetheless be “fair” to the adverse party against him.

The public deserves better than that, and so does any litigant (including the President) appearing before the Court.

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